Citation NR: 9729448
Decision Date: 08/26/97 Archive Date: 09/02/97
DOCKET NO. 95-30 501 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an effective date prior to September 30, 1993,
for establishment of a total disability evaluation for
service-connected post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. A. Wasik, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to January
1970.
This matter is before the Board of Veterans' Appeals (Board)
on an appeal of a September 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran alleges that he should be granted an effective
date in December 1986 for a total disability evaluation for
PTSD. He states that in December 1986, he began to
experience disabling symptoms from his PTSD.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the grant of an effective date prior to September
30, 1993, for establishment of a total disability evaluation
for PTSD.
FINDINGS OF FACT
1. The veteran's claim for an increased rating for PTSD was
received on December 29, 1992.
2. The evidence of record evidences the fact that the
veteran’s service-connected PTSD did not preclude him from
securing or following a substantially gainful occupation
prior to September 30, 1993.
CONCLUSION OF LAW
The criteria for an effective date earlier than September 30,
1993, for a grant of a total rating for PTSD have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1997); 38
C.F.R. §§ 3.400(o)(2), 4.16(c), 4.132, Diagnostic Code 9411
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim for an effective date earlier than
September 30, 1993, for the award of a total rating for PTSD
is a "well grounded" claim within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991); that is, he has presented a claim that
is plausible. He has not asserted that any records of
probative value that may be obtained and which have not
already been associated with his claims folder are available.
Accordingly, the Board finds that all relevant facts have
been properly developed, and that the duty to assist him,
mandated by 38 U.S.C.A. § 5107(a) (West 1991) has been
satisfied.
Factual Background
Review of the service medical records indicates that there
were no complaints of, diagnosis of or treatment for any
mental disorders including PTSD during active duty. The
veteran's service personnel records indicate that he was
awarded the Combat Infantryman Badge and the Purple Heart
medal.
In December 1986, the veteran was hospitalized at a VA
medical facility. He was admitted for treatment of
depression with suicidal ideation. The discharge diagnosis
was alcohol related.
A VA psychiatric examination was conducted in February 1987.
The veteran reported that he worked as a forester with the
government but found he could not focus on the job but had to
force himself to do it. The diagnosis was PTSD.
A Social Service Report was promulgated in March 1987. At
the time of the examination, the veteran had been married
three times and had attained a Forestry Degree. He worked
for the U.S. Forestry Service from 1977 until 1983. Since
1983, the veteran had been self-employed performing forestry
survey work.
By rating decision dated in April 1987, the RO granted
service connection for PTSD and evaluated the disorder as 30
percent disabling.
A Social Service Report was completed in January 1989. The
veteran was self-employed producing environmental impact
statements. The previous year, the veteran earned $2,000.00
to $3,000.00 where in prior years he would make $50,000.00.
The veteran operated a skider for logging the previous
winter. It was noted that the veteran was doing somewhat
better professionally than he was a year prior to the
examination. The assessment was that the veteran had a job
and relationship but was socially and industrially impaired.
Working for himself gave the veteran the freedom he needed
but in the previous year he was so depressed that he was
unable to function.
A VA examination was conducted in February 1989. The veteran
reported feeling depressed in 1983 and giving up a good
position as a Forrester with the government. He was working
at the time of the examination helping a friend log a forest.
The veteran performed other jobs working for the forest
service. He estimated that in the past 5 years he had worked
about half the time doing the projects for the forestry
service. It was noted that the veteran had strong impulsive
qualities which resulted in his working various jobs and then
leaving after several months trying something else. The
diagnosis was PTSD.
The veteran was afforded a VA examination in May 1992. It
was noted that the veteran's job allowed him to work alone
and he stated that he could only work by himself. It was
noted that the veteran was a college-degree forester who
found a way to make a living where he did not have to work
around other people. He stated that he used to work for the
forest service but found it too much like the military and
could not tolerate that. The diagnosis was chronic PTSD.
The examiner assigned a Global Assessment of Functioning
Scale (GAF) score of 50.
The veteran was hospitalized from November to December 1992.
He was admitted after becoming intoxicated and threatening
suicide. The diagnosis was alcohol dependence, PTSD and
recurrent major depression. A GAF score of 50 was assigned.
On December 29, 1992, the RO received the veteran's request
for an increased rating for PTSD.
In February 1993, the veteran underwent a VA PTSD
examination. The veteran reported that he felt his condition
had worsened since May 1992. He stated that job stress at
that time led to suicidal impulses. He became so bothered at
work that he quit his job and went to work for a friend as a
logger but did not last very long. He stated that he didn’t
have any motivation to complete his work. He found that he
could not tolerate supervising people or being around them.
The veteran reported that he could not work at the time of
the examination for the above reasons. The examiner opined
that the veteran's condition had worsened significantly since
the last evaluation in May 1992. The diagnosis was chronic
PTSD and alcohol dependence and abuse. The examiner assigned
a GAF score of 10.
On an Application for Increased Compensation Based on
Unemployability received in February 1993, the veteran
indicated that was self-employed from February 1982 to August
1992 and employed by Kornish Forest Contracting from
September 1992 to November 1992.
By rating decision dated in March 1993, the RO granted an
increased rating for the veteran's PTSD, evaluating the
disorder as 70 percent disabling.
In September 1993, the RO denied entitlement to a total
rating for unemployability due to service-connected
disabilities.
A statement was received from the veteran in November 1993
which indicated that the veteran's last day of employment
with Kornish Forest Contracting was September 29, 1993. The
veteran stated that he had not worked productively in the
forestry field since 1983.
The veteran was hospitalized for 15 days in January 1994 at
which time he underwent treatment for his PTSD. The
diagnosis was PTSD. A GAF score of 55 was assigned and it
was noted that the highest GAF score in the last year was 60.
In September 1994, the RO granted a 100 percent disability
evaluation for the veteran's PTSD on the basis of individual
unemployability under the provisions of 38 C.F.R. § 4.16(c),
effective from September 30, 1993.
In September 1994, the veteran submitted copy of a Contract
Daily Diary dated in May 1992. The document contained a
narrative of a confrontation the veteran had with his
employer.
On an Application for Increased Compensation based on
Unemployability dated in September 1994, the veteran
indicated that he last worked from October 1992 to September
1993 for Dave Kornish. At that time, he made $3,300.00 per
month and had lost 2 months to illness. He also indicated
that from February 1981 to September 1992, he was self-
employed and would make up to $4,000.00 per month seasonally.
He indicated that he had lost months of work due to his
illness. He stated that December 1986 was the date when he
was too disabled to work.
The veteran appeared for a RO hearing in July 1995. He
testified that from October 1, 1992 to September 29, 1993 he
worked 5 days per week and 4 weeks per month. He stated that
he last worked on September 29, 1993. He was to be paid
$40,000.00 per year plus expenses. In May of 1992, the
veteran worked by cutting and selling firewood. He
occasionally would have an overwhelming feeling that he could
not work. The veteran lost approximately 2 1/2 months of
work due to PTSD during the last year that he worked. He
stated that he thought he should be granted an effective date
from December 1986 when he first was diagnosed with PTSD.
A Social Security Administration Detailed Earnings Report was
associated with the claims file. It was reported that the
veteran earned $2,187.70 in 1986, from 1987 to 1991 the
veteran did not earn anything, in 1992 the veteran earned
$7,962.35, in 1993 the veteran earned $24,176.90 and in 1994
the veteran did not earn anything. A copy of the veteran's
1993 Federal Income Tax Return reported gross earnings as
$24,176.90.
Analysis
The general rule is that the effective date for an evaluation
and award of compensation based on a claim for an increased
evaluation will be (1) the date of receipt of the claim or
(2) the date entitlement arose, whichever is the later.
38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (emphasis added).
Regulations also provides that an effective date for the
award of an increased rating may be the earliest date it is
factually ascertainable that an increase in disability
actually occurred, if a claim is received within one year of
such date, otherwise the effective date will be the date of
the claim. 38 C.F.R. § 3.400(o)(2). This regulation allows
for the establishment of an effective date earlier than the
actual filing of the claim for increase, if there is medical
or other competent evidence supporting this increase within
one year prior to the receipt of the formal claim for an
increase.
On December 29, 1992, the RO received the veteran's claim for
an increased rating for PTSD. Thus the earliest that an
increased rating could be effective in the veteran's case
would be December 29, 1991 if it could be factually
ascertained that an increase in disability actually occurred
within that time period.
The Board notes that the September 1994 rating decision which
granted a 100 percent disability rating to the veteran did so
under the provisions of 38 C.F.R. § 4.16(c). This regulation
(which has been subsequently deleted) provided that when the
only compensable service-connected disability a veteran has
is a mental disorder assigned a 70 percent evaluation, and
such mental disorder precludes the veteran from securing or
following a substantially gainful occupation, a 100 percent
schedular evaluation under the appropriate diagnostic code is
to be assigned. In the current case, the only compensable
service-connected disability the veteran has is PTSD which
was assigned a 70 evaluation. The RO was correct to apply
the provisions of 38 C.F.R. § 4.16(c). The veteran did not
disagree with the actual rating assigned him, but he did
disagree with the effective date which was assigned. Thus
the Board’s determination in this case revolves around
whether the veteran’s PTSD precluded him from securing or
following a substantially gainful occupation prior to
September 30, 1993.
The Board finds that the veteran is not entitled to an
effective date for a 100 percent rating for PTSD under the
provisions of 38 C.F.R. § 4.16(c) earlier than September 30,
1993. The Board notes that a very low GAF score of 10 was
assigned by the examiner who conducted the February 1993 VA
examination. However, the May 1992 VA examination assessed
the veteran's GAF as being 50 and the January 1994 VA
hospitalization report assessed a GAF score of 55. The
veteran has alleged that he is entitled to an earlier
effective date prior to September 30, 1993 but the record
reflects that the veteran was employed up until September 29,
1993. The veteran testified at the RO hearing that from
October 1, 1992 to September 29, 1993 he worked 5 days a week
and 4 weeks per month. On the Application for Increased
Compensation Based on Unemployability dated in September
1994, the veteran reported that he was self-employed from
February 1981 to September 1992 and would make up to
$4,000.00 per month seasonally. There is some discrepancy
with the veteran's stated work periods and what was reported
on the Social Security Administration Earnings Report which
indicated the veteran had no income from 1987 to 1991 but did
earn $7,962.35 in 1992 and $24,176.90 in 1993. The
$24,176.90 earnings figure for 1993 was substantiated by the
veteran's 1993 Income Tax Return. The May 1992 VA
examination noted that the veteran was still employed at that
time. The February 1993 VA examination indicated that the
veteran could not work but this is in direct opposition to
his testimony at his RO hearing and what was reported on the
Social Security record which indicated that he was working
during that year. As the Board finds that the veteran was
employed from prior to December 1991 up to September 29,
1993, an earlier effective date for his PTSD under the
provisions of 38 C.F.R. § 4.16(c) prior to September 30,
1993, is not supported by the evidence of record.
ORDER
Entitlement to an effective date, prior to September 30,
1993, for establishment of a total disability evaluation for
service-connected PTSD is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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